We use cookies to customise content for your subscription and for analytics.If you continue to browse Lexology, we will assume that you are happy to receive all our cookies. For further information please read our Cookie Policy.

Ostrowercha v. Co-Operators General Insurance Co.

A pedestrian who was injured in a hit and run accident was not entitled to coverage under the unidentified automobile provisions of her own automobile policy because she was not an “occupant” of a vehicle at the time she was injured.

[2015] A.J. No. 1120

2015 ABQB 636

Alberta Court of Queens Bench

S.M. Sanderman J.

October 15, 2015

The plaintiff suffered catastrophic injuries in a hit and run accident that occurred while she was walking through a grassy area that was being used for temporary parking. She sought coverage under her own automobile policy issued by the Co-Operators General Insurance Company (“Co-Operators”). The policy attached S.E.F. #44 Endorsement (the "Endorsement"), which provided coverage for inadequately insured motorists, including uninsured or unidentified motorists. Co-Operators brought an application for summary trial seeking a dismissal of the plaintiff’s claim.

The plaintiff was attending a series of races held at a motor sports park. Afterwards she went to a campsite area that had been set up to accommodate competitors and visitors. At approximately 2:15 am, the plaintiff left the group she had joined to make a phone call. She walked beyond the perimeter of the campsite and into a grassy area beside it that was being used for temporary parking. As the plaintiff emerged from between two vehicles and continued walking, she was struck by a vehicle that ran over her and left without stopping. The Endorsement provided that Co-Operators would indemnify each eligible claimant for the amount they would be “legally entitled to recover from an inadequately insured motorist as compensatory damages in respect of bodily injury or death sustained by the insured person by accident arising out of the use or operation of an automobile.” The term “inadequately insured motorist” was defined in the Endorsement as including the driver or owner of an unidentified automobile. The term “unidentified automobile” was defined in the policy as:

An “unidentified” automobile under this sub-section means an automobile which causes bodily injury or death to an insured person arising out of the physical contact of such automobile with the automobile of which the insured person is an occupant at the time of the accident, provided

(a) The identity of either the owner or driver of such automobile cannot be ascertained;

“Occupant” was defined in the policy as a person driving, being carried in or upon or entering or getting onto or alighting from an automobile.

At the time the plaintiff was injured she was a pedestrian walking on a grassy field and there was no meaningful connection between her and her automobile at that time. As she was a pedestrian when the accident occurred, the person who struck her did not fall within the definition of inadequately insured motorist because the vehicle did not fall within the definition of an unidentified automobile given that the plaintiff was not an occupant of an automobile when the vehicle struck her. Therefore, the plaintiff was not entitled to any coverage under the Endorsement.

Compare jurisdictions: Arbitration

"Lexology is a good barometer of a firm's expertise as the articles showcase a firm's understanding of the issues involved and how up to date their knowledge is. It's a good one stop solution where one is able to view the same law/cases from different perspectives; on the whole I would rate Lexology as a good service."